Ten Questions for David Feige About Raising the Bar

At the Very Least, Mark-Paul Gosselaar Needs to Read This Post and Take Notes

[UPDATE: I just posted the following note on David's blog, and hope he'll allow it to appear on his site: "Hi David, I thought you should know about this. Unfortunately, it's how I really feel right now as a recently-retired PD. I was truly hoping for more from this program, and will admit to being somewhat piqued that my hopes were dashed so violently tonight. I'm sure my fellow PDs back in southern New Hampshire and the Boston Trial Unit are thinking similar thoughts right now. I realize "Philly" got cancelled, but it strikes me as having hit substantially closer to the mark, and on some level I have to believe that you know that and are yourself somewhat disappointed (I can only imagine the editorial processes you have to run your ideas through). I'm still hoping, I suppose, for a turnaround down the line. I understand the program's initial episode order was small, so maybe there's still time. Be well, -- Seth."].

So I watched Raising the Bar tonight. [See my prior post on this subject].

What Feige got right? The stunning power of the clerk class (albeit not through such direct means as represented on the show), the self-righteousness of both sides of the system on occasion, the egotism of some judges, and the fact that being a public defender means constantly feeling as though you've failed someone in a way that completely ruined their life and the lives of everyone they love.

But I have ten questions for David, co-creator of the show, fellow blogger, and presumably the person responsible for (as it were) fact-checking the script of this show.

1. Do you know any public defenders who cry as easily as Jerry Kellerman? As PDs we've all cried at least once, many of us much more than that. But you harden eventually, and certainly you never let your emotions show in an inappropriate setting unless you're physically incapable of stopping yourself. Crying in front of clients reduces their faith in your abilities; mugging absurdly in front of the judge after every blown call gains one a reputation for unprofessionalism, hurts your ability to persuade the court, and generally is something linked only to attorneys in their first or second month of practice (a colleague would bring the hammer down quickly enough). The notion that Kellerman destroys every social event he's at with his self-righteous palaver is likewise something I can't imagine surviving long in the hothouse of the criminal justice system. Are things different in New York?

2. Have you ever met a public defender who was "convinced" all his/her clients were guilty? No character ever depicted in a legal drama, on any television network ever in service, is less likely to have ever been a public defender in the past than Judge Kessler (I laughed when she provided that element of her bio, and not just because PDs are hardly ever elevated to the bench, for political reasons). Yet not only is Kessler a former PD, she also claims to have, as a PD, believed all her clients were guilty. How long was she a PD for? Sixteen minutes? Which office would have employed someone like that? Why would she have become a PD in the first place, given her ambitions regarding the bench? Are things different in New York?

3. In a case relying almost exclusively on the ID, do prosecutors in New York routinely concede the weakness of their ID? This was stunning. The ADA's negotiations with Kellerman were realistic enough, as were her later actions to try to mitigate the damage her prosecution had done. But really, she's going to just give up the ID like that in closing, in a case she still intends to win? What else did she have for a closing argument, beyond that and all her unlikely in-court clothing*? Do prosecutors tank their cases intentionally in closing like that, in New York?

* She dresses like that in the office? Seriously? Although it makes sense, given that she also sexually assaults her direct superior (crotch-grabbing) in the first three minutes of the show.

4. Have you ever met a prosecutor who privileges winning a case over locking up the innocent? I'm happy to say I haven't, and frankly I don't think you have, either (thank God). Sure, we all know prosecutors willing to condone and profit from procedural irregularities--but always because they personally believe the defendant is guilty. You've got a lawyer in this show willing to get disbarred over a single "win," not to mention destroying his reputation in the legal community (if I ever found out an attorney had done what he did, I not only would have reported him but almost certainly would never have negotiated with him again). I've been as frustrated with prosecutors, I'm sure, as you have, but I never tried a case against anyone who would've let a clearly innocent man be jailed for a crime the prosecutor knew he didn't commit. Are things different in New York?

5. Have you ever recommended that a client rat someone out? I've never done that. And no PD I know ever does that. And most clients I ever represented would have been disgusted with me if I'd ever proposed such a thing to them. They'd consider it an impeachment of their honor and their integrity. Are things different in New York?

6. In New York, do single-suspect photo identifications routinely not get tossed via a motion in limine? You must have known it would be stunning to any attorney watching the show that that ID made it into court. But maybe things are different in New York?

7. Do prosecutors in New York not have the sole authority, at their discretion, to nol pros cases? If the ADA wanted to dump the rape and plead the E Felony, wouldn't Judge Kessler's discretion have been limited to saying she was going to reject the 1 1/2 to 3 on the E Felony and instead (pending an assessment by probation) stick it to the defendant with the max on that charge? It seems odd that you both overstate and understate the power of prosecutors--and the way they commonly deploy their powers--in a single episode of a single show. Unless things are different in New York?

8. Say a prosecutor makes himself a witness in a case by sitting in on the interrogation of the defendant. In New York is that copacetic? Because the show just told me it was, despite the fact that (as you and I both know) that would never happen, and it's a product of the Law & Order series that we even think it could or might, and no attorney is that stupid or irresponsible, and frankly the show didn't really need the ADA to be present at the interrogation for that plotline to work. What it did do, though, is completely vitiate any sense you'd created of a public defender's special access to the defendant. This is precisely the sort of access of which your primary story is composed, and which the Law & Order series seeks to deny PDs by constantly putting them in rooms with both prosecutors and their clients. The whole point of the African-American ADA's "us versus them" mentality is that it is born of never--never ever--having had a conversation of any substance with a real live defendant currently on trial. But maybe, in New York...

9. Do public defenders in New York brazenly and casually inject race into their closing arguments, when doing so offers no advantage to their client except to inflame (and, in this instance, rightly) both judge and jury? Did that part of the script seem as stupid and unnecessary and contrived to you as it did to me, and as offensive to public defenders? Because most folks (after the Simpson trial) think defense attorneys inject race at every turn, and in fact we almost never do--and certainly never where it doesn't manifestly benefit the client (i.e., insert itself into the case in a way the average jury will find meaningful, instructive, and probative). Of course, you practice in New York, so what do I know?

10. New York is a place where everyone fucks everyone else (opposing counsel, your boss at the public defender's office, the judge you clerk for) and never recuses themselves from anything, am I right? It seems like it. Also, it seems like the truth of what happens in the criminal justice system wasn't sexy enough for TNT, or for you and/or your bosses.

To the extent the show's getting panned in the media, is it really because there isn't enough trashy talk, sex, skimpy clothing, and absurd courtroom melodrama to be had here? Or is it because there's no sense whatsoever that we're going to learn--or see--anything interesting, let alone true, in watching this? Something to consider, isn't it? And lest one say, "Well then write your own damn show!", I'd respond as follows: get me Bochco's home phone number, tell him I'm a public defender who's also a writer currently at the Iowa Writer's Workshop, and we'll see where it goes.

What I don't buy is this notion that the truth would just bore everybody. Really? If so, then someone explain this: When some bloke in Baltimore proposed a show depicting every slogging, bureaucracy-laden moment in the average police investigation, as well as the problems with urban schools, and (Christ!) even issues with stevedores' unions--a little show called The Wire--were they wrong to think it could be done brilliantly and compellingly? Because that's the best television show I've ever seen in my life, and the sex between co-workers there was bloody minimal, I tell you.

So, my final question for David:

Can you give public defenders a reason--just one--to keep watching this show?